Today in History (1862) - The U.S. government forbids all Union army officers from returning fugitive slaves, thus effectively annulling the Fugitive Slave Law of 1850 and setting the stage for the Emancipation Proclamation. On the same day in 1865, the Confederate Congress voted to enlist 300,000 black troops, granting them freedom with the consent of their owners. Lee surrendered a few weeks later.

June 12, 2005

Jason Samuel: On McCreary & Van Orden

by Guest Contributor

I'd like to comment on the two Establishment Clause cases for which the Supreme Court has yet to release its opinion(s). Of course I could've written a comment to the previous post that mentioned these cases, except I wouldn't mind sparking an extended discussion on the matter, which might have been missed had I placed my post as a comment.

To recap, the two Establishment Clause cases under discussion are:

Van Orden, Thomas v. Perry, Rick (Texas Gov.), on appeal from the Fifth Circuit. "Question presented: Whether a large monument, 6 feet high and 3 feet wide, presenting the Ten Commandments, located on government property between the Texas State Capitol and the Texas Supreme Court, is an impermissible establishment of religion in violation of the 1st Amendment?"

McCreary County, KY, et al. v. ACLU of KY, et al., on appeal from the Sixth Circuit. "Questions presented: (1) Whether the Establishment Clause is violated by a privately-donated display on government property that includes eleven equal-size frames containing an explanation of the display along with nine historical documents and symbols that played a role in the development of American law and government where only one of the framed documents is the Ten Commandments and the remaining documents and symbols are secular? (2) Whether a prior display by the government in a courthouse containing the Ten Commandments that was enjoined by a court permanently taints and thereby precludes any future display by the same government when the subsequent display articulates a secular purpose and where the Ten Commandments is a minority among numerous other secular historical documents and symbols? (3) Whether the Lemon test should be overruled since the test is unworkable and has fostered excessive confusion in Establishment Clause jurisprudence? (4) Whether a new test for Establishment Clause purposes should be set forth by this Court when the government displays or recognizes historical expressions of religion?" [Excerpted from here.]

The excerpted "questions presented" come from briefs on the cases published online by the Medill School of Journalism's Open Docket project. To save space and time, I will assume that our readers are familiar with the facts of the respective cases, which are nicely provided by the briefs I've just mentioned.

I've been thinking of the many ways we can approach discussing these cases specifically, and Establishment Clause cases generally. Since there are an infinite number of ways to address these things, I'd like to refrain from spending too much time and energy now and save my criticisms for when the Court releases their opinions.

I've reviewed the comments to E.C.'s original post, but found nothing in the way of frameworks of analysis the SC has, and probably will, employ in these two cases.

We should start with the Constitution, then proceed to how the Constitution's Establishment Clause has been interpreted by courts, including especially the US Supreme Court.

The First Amendment of the United States Constitution states, in part, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof" US Const. Am 1. The Establishment Clause refers to the first clause of this amendment. "[T]he three main evils against which the Establishment Clause was intended to afford protection: sponsorship, financial support, and active involvement of the sovereign in religious activity." Lemon v. Kurtzman, 403 U.S. 602, 612 (1971). The Supreme Court understands this clause to mean that government cannot promote or affiliate itself with any religion or religious doctrine. County of Allegheny, 492 U.S. at 590.

One method the Supreme Court has used when interpreting the Establishment Clause has been the Lemon test, first articulated in Lemon v. Kurtzman, where the Court held unconstitutional two state statutes that provided financial support to nonpublic elementary and secondary schools because the statutes fostered excessive entanglement between government and religion. Lemon, 403 U.S. 602. For a government practice to be permissible, it "must have a secular purpose; it must neither advance nor inhibit religion in its principal or primary effect; and it must not foster an excessive entanglement with religion." County of Allegheny, 492 U.S. at 592.

The goal is not a total separation between church and state; courts realize that some relationship is inevitable. Lemon, 403 U.S. at 614. The Supreme Court has even suggested the impossibility of impartiality while also suggesting that religious character or the origin of the text is not alone dispositive because the court went as far as to recognize a legitimate interests for the government to encourage study of religious texts, worthy for their literary and historic qualities. Sch. Dist. v. Schempp, 374 U.S. 203, 225 (1963).

The Lemon test is but one of the various tests the SC has used in these matters. I'm confident in saying that it's the most severe of the tests, primarily because of its tripartite nature, which each need to be satisfied for the government's conduct or law not to be considered a violation of the Establishment Clause.

In her concurring opinion in Lynch, Justice O'Connor states that "[t]he purpose prong of the Lemon test asks whether government's actual purpose is to endorse or disapprove of religion. The effect prong asks whether . . . the practice under review in fact conveys a message of endorsement or disapproval." Lynch, 465 U.S. at 690. Here, Justice O'Connor combined from the Lemon analysis analysis the purpose prong with the effect prong to determine whether the government is endorsing religion. Justice O'Connor states that "[w]hat is crucial is that a government practice not have the effect of communicating a message of government endorsement or disapproval of religion [to the reasonable observer]." Id. at 692.

Justice Kennedy, in in Lee v. Weisman, suggested that so long as the law or conduct in question does not coerce the reasonable observer from doing something they would not otherwise do, it should not stand as a violation of the Establishment Clause. This test is referred to as the Coercion test.

What will prove interesting is which test, if any, the majority employ in these cases since the Court has been known to completely ignore tests in this area too. An issue in McCreary [its third and fourth question presented] is, in fact, the Court's use of such tests in deciding Establishment Clause matters.

I will close with these considerations.

The Constitution does not forbid government advancing religion, generally. There is nothing in the text of the Constitution that suggests government cannot also suggest respect for religion. While I can foresee disagreement on these last statements, we must all acknowledge, however, that the SC hasn't given us a definition of religion, or what it takes to be religious. Of course, we can discern to some degree what it takes to be religious by the cases that it chooses to hear, but these aren't, in my opinion, adequate measures. The little I can predict for McCreary and Van Orden is that nearly everyone will be disappointed in how the court deals with the matters. Once we have those hostile to any presence of religion in the public square and those equally hostile to keeping their belief "private," we will all be dissatisfied with a court that believes in compromise through balance and tests.

I'm inclined just out of crankiness to say the Kentucky display should be struck down too, on account of bad motives by the government as evidenced by the prior display. But if the current display really doesn't seem to prioritize the decalogue any more than the SCOTUS building prioritizes Moses -- that is, if the Ten Commandments are in a context of Old-ass Documents That Attempt to Prescribe Behavior -- then I guess McCreary Co. is safe.